Rahul had earlier blogged on a problematic memo by the DIPP (Department of Industrial Policy and Promotion), wherein it interpreted Section 31D of the Copyright Act to include “internet” broadcasts as well. I believe this is clearly outside the constitutional competence of the DIPP and have requested the DIPP (through the letter below) to withdraw the memo. I also reflect on the recent trend of IP law making in the country, done with considerable opacity and flouting well established canons of constitutional competence, law making and rule of law, to seemingly favour specific stakeholders.
For those interested, the text of the letter (sent today to the DIPP) is below.
Ms. Surabhi Sharma
Deputy Secretary to the Government of India & CPIO
Re: Office Memorandum on Internet Broadcasting under Section 31D of Copyright Act
Dear Ms. Sharma:
I hope this finds you well. This refers to an office memorandum dated September 5, 2016 (F-No 14-35/2015-CRB/LU (IPR VII) issued by the Department of Industrial Policy and Promotion (DIPP) under your signature. This memorandum seeks to interpret Section 31D of the Copyright Act, 1957 (dealing with statutory licenses in favour of “broadcasting organisations” that communicate copyrighted content to the public) and notes that the said provision covers “internet” broadcasts as well.
While I understand and appreciate the spirit behind this move (to offer much needed guidance to copyright stakeholders), it unfortunately falls outside the constitutional competence of the DIPP to issue such a memorandum. My reasons are below:
The Copyright Act, 1957 was legislated upon by the Parliament of India and brought into force, following well accepted legal tenets. Under our constitutional scheme, it is our courts of law that are tasked with the primary duty of interpreting this statutory enactment. Government agencies may also interpret the various provisions, provided the statute itself provides some scope for them to do so. Illustratively, the Patent Office (a quasi-judicial government agency) has the authority to interpret provisions in the Patents Act, 1970, since they have to make patentability determinations; and these determinations often turn on the scope and ambit of various statutory provisions.
Unfortunately, neither the DIPP nor the Copyright Office has anything to do with section 31D of the Copyright Act or the issuance of statutory licenses under it. That power vests with the Copyright Board, which as you know is an independent tribunal, and not an agency of the government under the purview of the DIPP.
Some of us have been agitating this issue for several years now, beginning with a PIL (public interest litigation) in 2011 asking that the IPAB be treated as an independent tribunal and not as an agency of the government. As you know, in earlier years, the IPAB was listed on the DIPP website as an agency/wing of the government. The court ruled in our favour, and that ruling has now attained finality.
Similarly, the Copyright Board too is an independent tribunal, as made amply clear by the Madras High Court which ruled thus: “the functions of the Copyright Board are predominantly judicial…The 1st respondent has failed to understand the fundamental role assigned to the Board and its object. We only reiterate our decision rendered in Shamnad Basheer Vs. Union of India…”.
Therefore, this office memorandum lacks legal sanctity and is an affront to the carefully crafted constitutional separation of powers, under which the executive should stay its hand in proffering a statutory interpretation, unless the statute itself calls on it to do so.
I therefore hope that you will withdraw this memorandum at the earliest. I am a great fan of compulsory licensing and believe that it is the way forward for the future. A “middle path” of sorts that ensures maximal dissemination of creative wares, whilst at the same time compensating the IP owner for having originated the creative expression in the first place. However, the issue here is not whether or not the interpretation proffered by the DIPP is the correct one. But whether or not the DIPP is constitutionally competent to issue such an interpretation in the first place.
As you can well appreciate, internet broadcasters may be detrimentally impacted by your memorandum; for it may offer them the false hope that they are entitled to such a license, when a constitutionally competent authority (such as the Copyright Board) may well rule otherwise in the near future. The proper route is for such broadcasters to directly approach the Copyright Board and await a ruling on this count i.e. whether or not they qualify for the license under section 31D.
Unfortunately, the new Copyright Board is still in the making. I understand that the Delhi High Court directed the expeditious formation of the Board and in particular the “appointment the Chairman and the Member of the Copyright Board as expeditiously as possible”. However, despite this ruling, these appointments have not been made (to the best of my knowledge). I sincerely hope that the DIPP will take immediate steps to unleash an independent and constitutionally competent Copyright Board, such that it can begin to engage in these complex interpretational duties.
This letter also comes in the context of what I see as a worrying trend in IP law making in in the recent past, where constitutional norms of transparency, consultation and agency remit/competence are completely ignored and given a go by. I speak in particular of the recent controversy involving GMO technology, where the Ministry of Agriculture (MoA) sought to issue a broad based automatic compulsory license against patented GMO technology, despite lacking the relevant legal/subject matter competence.
Worse still, the MoA notification appears to make a patentability determination in its preamble, despite such determinations being the exclusive domain of the Patent Office and the courts.
Our personal predilections against GMOs notwithstanding, it is a matter of deep concern that government agencies appear to be flouting the rule of law with impunity seemingly at the behest of select private parties. In other words, while there may be some merit in attempting to regulate GMO patents, this must be done after following due process under the law, through the relevant competent authority (such as the Patent Office), and not through abusive law making designed to seemingly favour one set of stakeholders who are essentially engaged in a private commercial dispute.
Further, the desire of the MoA to qualify Monsanto’s patented BT cotton technology as a ‘standard’ to be adopted widely throughout the country and licensed under FRAND terms stands in stark contrast to the DIPP move to apparently invalidate the patent on the ground that it is “inefficacious”!Paradox couldn’t have found a better fit! In any case, it is somewhat surprising that the government choses to concentrate all of its eggs in the BT cotton basket, when it should be encouraging a plurality/diversity of approaches in Indian agriculture (entailing both GM technology and the more traditional processes that have stood the test of time and works against other pests).
But I digress. The larger point I wish to make is this: some of these instances of IP law making by government agencies in the recent past qualify as an egregious abuse of process and flouts well established canons of law making and the rule of law. I am hopeful that the present memorandum by the DIPP does not suffer that vice, but comes from a bona fide intent to shine some interpretative light on a complex area of copyright law. Unfortunately, laudable as the motives may be, this interpretative expedition falls outside the remit of the DIPP.
Before I sign off, let me clarify that I have no vested personal interest in this matter. I write only as a concerned academic who’s had a somewhat tortuous history with attempting to dock our IP tribunals on more stable legal moorings. A history that is reflected in greater detail in a recently published report for the ICTSD (International Centre for Trade and Sustainable Development).
With the fond hope that you will offer this letter some serious consideration, I remain:
Most sincerely yours,
Prof (Dr) Shamnad Basheer
Honorary Research Chair Professor of IP Law, Nirma University
Visiting Professor of Law, National Law School, Bangalore
 Department of Industry Policy and Promotion (Copyright Section), Office Memorandum, F.No. 14-35/2015-CRB/LU (IPR VII), September 5, 2016,available at http://dipp.nic.in/English/acts_rules/orders/OM_CopyrightAct_05September2016.pdf (last visited on September 14, 2014). See also Rahul Bajaj, Statutory Licensing Scheme under Copyright Act Made Applicable to Online Broadcasting, SpicyIP, September 11, 2016,//spicyip.com/2016/09/statutory-licensing-scheme-under-copyright-act-made-applicable-to-online-broadcasting.html (last visited on September 14, 2016).
 Shamnad Basheer v. Union of India & Ors., Madras High Court, W.P. No. 1256 of 2011, //spicyip.com/docs/IPABwrit.doc (last visited on September 13, 2016). See also Prashant Reddy, Breaking News: Madras High Court Admits Petitions Challenging the Constitutionality of the IPAB and the Copyright Board, SpicyIP, January 27, 2011, //spicyip.com/2011/01/breaking-news-madras-high-court-admits.html (last visited on September 13, 2016).
 Shamnad Basheer v. Union of India & Ors., Madras High Court, W.P. No. 1256 of 2011, decided on March 10, 2015.
 Shamnad Basheer v. Union of India & Ors., Supreme Court of India, W.P. No. 1256 of 2011, decided on July 27, 2015.
 South India Music Companies Association v. Union of India & Ors., Madras High Court, W.P. No. 6604 of 2015, decided on March 30, 2016.
 See Asit Ranjan Mishra, Copyright Issue: Immediate Relief for Audio Streaming Websites Unlikely, Live Mint, September 6, 2016,http://www.livemint.com/Politics/Ol62GhloajQmhAPJQI9L9L/Copyright-issue-Immediate-relief-for-audio-streaming-websit.html (last visited on September 13, 2016).
 SH. Puran Multimedia Ltd v. Union of India, Delhi High Court, W.P.(C) 610/2013 & C.M.No.1155/2013, decided on May 31, 2016.
 Ministry of Agriculture and Farmers Welfare, Licensing Guidelines and Formats for GM Technology Agreements For Comments/Suggestions, May 24, 2016, available at http://www.aipla.org/committees/committee_pages/Standards_and_Open_Source/Committee%20Documents/draftlincen.pdf (last visited on September 15, 2016). See also Prashant Reddy, India Creates a ‘Licence of Rights’ System for GM Patents: Is it Legal?, SpicyIP, May 22, 2016,//spicyip.com/2016/05/guest-post-india-creates-a-licence-of-rights-system-for-gm-patents-is-it-legal.html (last visited on September 14, 2016); Rahul Bajaj, Government Withdraws Guidelines Fixing FRAND Terms on the Licensing of Bt Cotton, SpicyIP, June 7, 2016, //spicyip.com/2016/06/government-withdraws-guidelines-fixing-frand-terms-on-the-licensing-of-bt-cotton.html (last visited on September 14, 2016).
 See Prashant Reddy Ibid.
 Vivek Deshpande, Monsanto Patent under Cloud as Bt Cotton Prone to Pink Bollworm, The Indian Express, March 8, 2016,http://indianexpress.com/article/india/india-news-india/monsanto-patent-under-cloud-as-bt-cotton-prone-to-pink-bollworm/ (last visited on September 15, 2016) (noting the DIPP move to invalidate Monsanto’s patent on the ground that patented BT cotton technology is no longer effective against the pink bollworm).
 Rahul Bajaj, Ending Monsanto’s Monopoly in the Development of Pest-Resistant Cotton: Is Desi Cotton the Answer?, SpicyIP, August 26, 2016,//spicyip.com/2016/08/ending-monsantos-monopoly-in-the-development-of-pest-resistant-cotton-is-desi-cotton-the-answer.html (last visited on September 15, 2016); See also Mrinalini Kochupillai, On Bt Cotton, FRAND Licensing and Recent Governmental Initiatives: Putting Things in Context – II, SpicyIP, September 8, 2016, //spicyip.com/2016/09/on-bt-cotton-frand-licensing-and-recent-governmental-initiatives-putting-things-in-context-ii.html (last visited on September 15, 2016).
 Shamnad Basheer, Specialist IP Adjudication: The Indian Experience in J. de Werra et al., Specialised Intellectual Property Courts – Issues and Challenges, Global Perspectives for the Intellectual Property System, CEIPI-ICTSD, Issue Number 2, 2016, at pp. 54-73, available athttp://www.ictsd.org/sites/default/files/research/Specialised%20Intellectual%20Property%20Courts%20-%20Issues%20and%20Challenges_0.pdf (last visited on September 14, 2016).